Australian Communications and Media Authority ACMA submission Senate Environment and Communications References Committee Inquiry into Australian content on broadcast, radio and streaming services JANUARY 2018 communicating facilitating regulating Canberra Red Building Benjamin Offices Chan Street Belconnen ACT PO Box 78 Belconnen ACT 2616 T +61 2 6219 5555 F +61 2 6219 5353 Melbourne Level 32 Melbourne Central Tower 360 Elizabeth Street Melbourne VIC PO Box 13112 Law Courts Melbourne VIC 8010 T +61 3 9963 6800 F +61 3 9963 6899 Sydney Level 5 The Bay Centre 65 Pirrama Road Pyrmont NSW PO Box Q500 Queen Victoria Building NSW 1230 T +61 2 9334 7700 or 1800 226 667 F +61 2 9334 7799 Copyright notice http://creativecommons.org/licenses/by/3.0/au/ With the exception of coats of arms, logos, emblems, images, other third-party material or devices protected by a trademark, this content is licensed under the Creative Commons Australia Attribution 3.0 Licence. We request attribution as: © Commonwealth of Australia (Australian Communications and Media Authority) 2018. All other rights are reserved. The Australian Communications and Media Authority has undertaken reasonable enquiries to identify material owned by third parties and secure permission for its reproduction. Permission may need to be obtained from third parties to re-use their material. Written enquiries may be sent to: Manager, Editorial and Design PO Box 13112 Law Courts Melbourne VIC 8010 Tel: 03 9963 6968 Email: [email protected] Contents Introduction 1 Focus of the ACMA’s submission 1 Overview of the Australian and children’s content obligations for television and radio 1 Structure of this submission 2 1. Australian content requirements— commercial free-to-air television 3 Rules 3 Compliance 5 2. Australian content requirements— subscription television 8 Rules 8 Compliance 8 3. Australian music requirements— commercial radio 9 Rules 9 Compliance 10 4. Australian content expenditure— commercial radio and television 11 5. The contemporary media environment 12 Communications report 12 Children’s television viewing and multi-screen behaviour 12 Australian content conversation 13 Australian and Children’s Screen Content Review 13 acma | iii Introduction Focus of the ACMA’s submission The Australian Communications and Media Authority (the ACMA) is an independent statutory authority. It was established in 2005 to be a converged regulator responsible for broadcasting, radiocommunications, telecommunications and online content. It has a complex regulatory remit spanning some 26 Acts, including the Broadcasting Services Act 1992 (BSA). Under the BSA, the ACMA’s broadcasting functions cover licensing, media control rules, registration of industry codes and standards, and complaints and investigations functions. The Senate Environment and Communications References Committee is conducting an Inquiry into Australian content on broadcast, radio and streaming services. This submission focuses on the ACMA’s broadcasting functions; in particular, its role in administering the regulatory interventions aimed at the broadcast of, and investment in, Australian and children’s content on television and Australian music on radio. The BSA’s definition of a ‘broadcasting service’ excludes services that deliver programs ‘using the internet’ or that make programs available ‘on demand’ or on a point-to-point basis.1 This means that the ACMA’s role in relation to the broadcast of and investment in Australian and children’s content is currently limited to traditional broadcasting services and does not extend to newer streaming services. The ACMA would be happy to engage further with the Committee or to provide supplementary information on request. Overview of the Australian and children’s content obligations for television and radio The ACMA’s broadcasting services functions include the development and administration of industry codes and standards. The BSA itself, and various industry codes and standards, contain specific rules about the broadcast of, and expenditure on, Australian and children’s content. These rules apply to commercial television and radio broadcasters, and to subscription television broadcasters. The rules include requirements on commercial television broadcasters for: > minimum transmission quotas of Australian programming for commercial television > minimum sub-quotas for Australian drama, documentary and children’s programs. The BSA requires subscription television broadcasters and channel suppliers that provide drama channels to invest in new Australian drama. The Commercial radio code of practice 2017 includes quotas for minimum levels of music performed by Australians that must be broadcast. 1 Section 6 of the BSA and Ministerial Determination made in 2000. acma | 1 Structure of this submission Chapters one to four of this submission provide additional information about the Australian and children’s content schemes administered by the ACMA. Chapter five includes observations about the contemporary media environment and, in this context, highlights some of the findings of the ACMA Communications report 2016–17, ACMA research into children’s television and multi-screen behaviour (2017) and the Australian content conversation (May 2017). 2 | acma 1. Australian content requirements—commercial free-to-air television Rules The BSA Section 121G of the BSA sets out a core requirement that commercial television broadcasters provide Australian programs for no less than 55 per cent of all programming broadcast on their primary television service in a calendar year between 6 am and midnight. It also requires commercial television broadcasters to provide a total of 1,460 hours of Australian programming between 6 am and midnight across their non-primary television services (multichannels). The BSA encourages the broadcast of first-release Australian drama on multichannels by ‘weighting’ (in effect, double-counting) the amount of hours that such first-release programs contribute to the 1,460-hour requirement. Australian Content Standard, Children’s Television Standards and Television Program Standard 23 The Australian Content Standard (ACS) and Children’s Television Standards (CTS) are program standards developed by the ACMA that apply to commercial television broadcasters. They set out minimum annual sub-quotas for Australian drama, Australian documentary and children's programs. The ACS defines an Australian program as one produced under the creative control of Australians (see section 7 of the ACS). Australian drama An Australian drama program is defined in the ACS as a program that incorporates scripted elements of character, theme and plot as part of a narrative structure. This may include actors delivering improvised dialogue based on a written outline. Sketch comedy and dramatised documentary are included. Drama programs from New Zealand can also be counted towards the Australian drama quota—in accordance with section 16 of the Australian Communications and Media Authority Act 2005, which requires the ACMA to perform its functions in a manner that is consistent with the Australia–New Zealand Closer Economic Trade Agreement (CER). The CER states that New Zealand persons (and services provided by them) must be treated no less favourably than Australian persons (and services provided by them).2 The ACS requires that each commercial television broadcaster must achieve a score of at least 250 points for first-release Australian drama each year and a score of 860 points for each triennium period. 2 In 1998, the High Court found that a previous version of the ACS made by the Australian Broadcasting Authority was in breach of Australia’s obligations under the CER because, under that version, New Zealand programs had less favourable access rights to the Australian market for television programs than Australian programs. As a result, the ACS was remade in 1999 to include the current provisions that allow New Zealand television programs to be claimed as Australian television programs for the purposes of the ACS. acma | 3 The drama score is calculated by multiplying the program duration in hours by its format factor. The points scored by a particular program are calculated based on the program's format and/or the licence fee paid. This is set out in more detail in Table 1. Table 1: Calculation of format factor Program type Format factor Australian drama series or serial produced at the rate of more than one hour per week 1 Australian drama series or serial produced at a rate of one hour or less per week 2.5 Australian drama series or serial produced at a rate of one hour or less per week and acquired from an independent producer for a licence fee of at least $421,000 per hour 3 (adjusted for CPI) Australian feature film 2.5 Australian feature film that has been acquired for a licence fee of at least $211,000 4 Australian telemovie, mini-series or self-contained drama of less than 90 minutes 4 duration Australian documentary A documentary program is defined as a program that is a creative treatment of actuality other than a news, current affairs, sports coverage, magazine, infotainment or light-entertainment program. Observational 'real-life'-style programs can be acquitted against the documentary quota. The ACS requires each commercial television broadcaster to broadcast at least 20 hours of first-release Australian documentary programs annually, with each of at least 30 minutes duration, between 6 am and midnight. Children's programs Each commercial television broadcaster is required to